Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

16 September 2005

Judge Roberts: A Man for the Times?


To me, the most poignant part of the Roberts Hearings came after most people probably had tuned out, when Rep. John Lewis (D-Ga) gave his testimony. Rep. Lewis literally bears the scars of the civil rights struggle, having been nearly beaten to death in the early 1960s. He is one of the few venerable, grizzled old lions of civil rights still living. Slowed by age, but still unbowed, he argued against confirming Judge Robert’s nomination because, in his view, Judge Roberts just didn’t “get” civil rights. Sen. Durbin (D-Ill.) asked him whether he thought Judge Roberts might have “redeemed” himself from the views that he once had argued as a staff attorney for the Reagan Administration. Rep. Lewis answered no, that Judge Roberts had no passion for civil rights and had been on the wrong side of history.

More than anything, that moment captured for me the central dilemma of the Hearings. In three days Judge Roberts showed no passion for civil rights. Nor did he show much passion for anything else. You could be passionately for a woman’s right to choose or passionately for the rights of the unborn. You could believe that homosexual marriage is an abomination before God or that free people should be free from discrimination. You could believe that Guantanamo and the Patriot Act are grotesque violations of civil rights or measures essential to protecting us from terror. Whatever your cause, you could have sat through the entire hearings and found not one word or twitch from Judge Roberts to validate your passion.

The closest he came was in speaking about women’s rights. He mentioned his wife, sisters and daughter, and his concern for their rights seemed genuine. But even then, there was little real passion in his voice or eyes, just sincere concern.

At one point, some senators seemed to suspect that Judge Roberts is an automaton, a brilliant robot programmed to decide cases “without fear or favor,” but without any human feeling. The whole room relaxed visibly when he cracked a joke. Sen. Kohl (D.-Wis.) opined, “You’re not an automaton.”

Judge Roberts’ lack of passion troubles me, just as it has nearly all the Democratic senators. But Judge Roberts did reveal one passion consistently throughout the hearings. At numerous times and in different contexts, he expressed a passion for the rule of law, for impartial and neutral justice. His eyes lit up, his face hardened, and you got the impression of very strong conviction—--the more so since in three days he showed no passion for anything else. If Judge Roberts revealed any emotion besides hope that his daughter would not suffer gender discrimination, that was it.

Judge Roberts’ passion is an odd one. Like a “passion” for neutrality, a “passion” for the rule of law is almost an oxymoron. A passion for neutral, impartial law is also odd in another respect. Some very smart people believe that no such thing exists. Some terms in the Constitution, they say, are so vague that a Supreme Court Justice, who has the job of interpreting them, has no alternative but to rely on personal values in giving them meaning, if only subconsciously. Others, like Judge Roberts, believe there is enough guidance in the Constitution itself, as well as in history, precedent, and perhaps the views of colleagues, to make judgments without resorting to one’s own values.

No one will ever resolve that philosophical dispute. As a matter of theory and psychology, I agree more with the “values” folk. One’s life experience, world view, and values can’t help but influence one’s decisions, particularly when they are as difficult and close as many the Supreme Court is called to make. Yet as a practical matter, a judge who believes in neutral, impartial rules that he can find with some effort is more likely to rule accordingly than a person who believes that no such rules exist and therefore sees her own feelings and values as perfectly legitimate bases for construing the Constitution.

So I take Judge Roberts at his word. He will judge without passion or prejudice, try to divorce his judgment from his personal feelings and values, and strive with all the power of his considerable intellect to find neutral principles of law with which his colleagues can agree. Is that the kind of Chief Justice we need today?

We seem to be living Yeats’ famous line, “The best lack all conviction, while the worst are full of passionate intensity.” Judge Roberts, certainly among “the best” in intellect, skill, knowledge, restraint and civility, seems to lack passion. But others have far too much. Extremists from the Islamic world are so passionate they blow themselves up, taking unwilling innocents with them. Passionate folk from our own ranks have blown up abortion clinics and government buildings. Our own people are so passionately polarized on so many “hot button” issues that their representatives in Congress, reflecting their passion, often sound like squabbling children more than leaders of a great democracy. Maybe the times we live in have too much passion and too little quiet reason.

Some of the issues that seem to divide us so passionately are not, perhaps, the most important and difficult we soon may face. Few of us actually have abortions or love women who do. Few of us are homosexuals who marry. But all of us have a vital stake, for example, in the tradeoff between civil rights and security. Our lives or our liberty may depend on it. If debate on this topic is so heated now, imagine how hot it might get after terrorists nuked one of our cities. Suppose the devastation wrought by Katrina were the result not of a hurricane, but of a terrorist attack. Can you imagine the strain on our legal system and our way of life? It could happen.

The near future does not look rosy. Iraq may be sliding into civil war. Al Qaeda, which once may have been a single organization, is now a hidden cancer metastasizing worldwide. There will be more hurricanes after Katrina, if not this season then next. The recent increase in their number and strength may be due to global warming---a problem we haven’t even begun to attack. California is still waiting for the “Big One,” a massive earthquake almost certain to come some time in the next century or so. After the War in Iraq and Katrina, our national debt is exploding, while our savings rate approaches zero. The financial burden on posterity increases daily.

As for our own body politic, it seems never to have been more polarized since the Civil War and Reconstruction. The brief sense of unity that came after September 11 is long gone. Pain and anger from the year-2000 election die hard. Democrats---who have had few ideas but revenge since then---reflexively cry “no, no, no!” to every new Republican idea from school vouchers to Judge Roberts’ nomination. We are even polarized on how to recover from Katrina. Republicans literally bubble over with new ideas---some good, some bad---from enterprise zones to yet more tax relief, while Democrats think of a recovery “czar” and a new federal WPA program. Haley Barbour, Governor of Mississippi, goes on television and tells the federal government to send money but keep out, an age-old response to federal intervention there. As I think of our country and its many deep divisions, even in disaster, the words from a verse in Handel’s Messiah keep running through my mind: “And we, like sheep, have gone astray, every one to his own way.”

As a people, our recent collective record in getting things done is not very good. We have botched a war, run our intelligence services abysmally, and allowed a great city to be inundated, although protecting it would have been a simple matter of pedestrian civil engineering. Maybe we need fewer people who have passionate ideas and more who work hard and silently and are very, very good at what they do. Doesn’t that prescription apply to Judge Roberts? Might we need a quiet unifier?

Hard times may lie ahead. If they come, they may put enormous strain on our legal system. Certainly another disaster like Katrina or another major terrorist attack would. If the rule of law is to survive a coming storm, whom do we want at the helm? Do we really want an ideologue or partisan, even one who shares our own passions? Willy nilly, passion breeds disrespect from those who don’t share it, and disrespect is not what our courts need in times of national stress. The federal courts already have their share of disrespect, with a few Senators and Representatives all but calling for civil disobedience from the halls of Congress. There have been physical attacks on federal judges and their families. If this can happen in relatively placid times (at least at home), what might happen when times get really tough?

As Judge Roberts observed in the hearings, our courts are what make the rule of law reality. They have no army, no independent source of funds, no large bureaucracy. They are truly the “least dangerous” and most vulnerable branch. Their survival in tough times depends entirely on the respect they command from the other branches of government and from the people. Maybe what we need most now is not passion, but the type of consistency, neutrality, quiet competence, iron integrity, and almost superhuman civility that Judge Roberts displayed at the Hearings. Maybe those qualities can earn grudging respect from all of our passionate factions and allow the rule of law to survive the much harder times that soon may come.



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